Williams v. State, No. 2-678A182

Docket NºNo. 2-678A182
Citation178 Ind.App. 554, 383 N.E.2d 416
Case DateDecember 20, 1978

Page 416

383 N.E.2d 416
178 Ind.App. 554
Patrick E. WILLIAMS, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 2-678A182.
Court of Appeals of Indiana, Fourth District.
Dec. 20, 1978.

[178 Ind.App. 555]

Page 417

Carol A. Glass, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

CHIPMAN, Presiding Judge.

Appellant-defendant, Patrick E. Williams, was convicted in a trial to the court of Count I, Commission of a Felony While Armed, to-wit: Rape 1 and Count II, Rape. 2 Williams appeals alleging the following errors: (1) the trial court committed fundamental error by sentencing Williams on both counts; and (2) there was insufficient evidence to sustain the verdict because (a) the State witness' testimony was unworthy of belief, and (b) the State failed to present sufficient evidence establishing the venue of the alleged offense. We find that it was error to enter judgment and impose sentence upon both Counts I and II.

[178 Ind.App. 556] The trial court is directed to vacate both the judgment and sentence on Count II, Rape, and is in other respects affirmed.

I. Entry of Judgment on Both Counts

Williams asserts that the court erred in sentencing him on both counts of the information. Since this issue was not contained in the motion to correct errors, it must be fundamental error before we will reach it on appeal. A reviewing court is reluctant to invoke the fundamental error doctrine and should do so only when a blatant error has occurred which would deny a defendant fundamental due process. Phillips v. State (1978), Ind., 376 N.E.2d 1143. The fundamental error doctrine allows the reviewing court to "by-pass the normal rules of appellate procedure . . . and, in so doing, to disregard the sound judicial policy underlying that procedure." Winston v. State (1975), Ind.App., 332 N.E.2d 229, 232.

In reviewing the record as to the conviction and sentencing of Williams we conclude that fundamental error did occur. Pinkler v. State (1977), Ind., 364 N.E.2d 126; Swininger v. State (1976), 265 Ind. 136, 352 N.E.2d 473. We will, therefore, address this issue notwithstanding Williams' failure to present it in his motion to correct errors.

I.C. 35-13-4-3, which is the rape statute with which we are here concerned, provides in part:

Whoever has carnal knowledge of a woman forcibly against her will, or of a female child under the age of sixteen (16) years; or whoever being over eighteen

Page 418

(18) years of age, has carnal knowledge of a woman, other than his wife, who is insane, idiotic or feeble minded, he knowing of such condition; (,) is guilty of rape, . . .

It should be observed that under this statute, several distinct crimes of rape are defined, all of which are felonies, namely: (1) where the act was forcibly done and against the will of the woman, i. e. forcible rape; (2) with a child under sixteen years of age, with or without force, i. e. statutory rape; and (3) with an insane or feeble minded woman, force again not being necessary. Chesterfield v. State (1923), 194 Ind. 282, 141 N.E. 632. The proof necessary to establish one of these rape offenses would be at variance with the evidence and proof that would be required in order to establish another of the offenses. These crimes of rape do [178 Ind.App. 557] not contain the same elements and consequently, are not included offenses, but rather, must be regarded as separate, distinct offenses. See Gunderman v. State (1934), 207 Ind. 515, 191 N.E. 338.

Our Supreme Court has previously held that where the Identical crime is charged in two separate counts, the only difference being that in one count the defendant is additionally charged with being armed with a deadly weapon, judgment should only be entered for the greater offense and not upon both counts. Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d 815; Robbins v. State (1968), 251 Ind. 313, 241 N.E.2d 148. Therefore, where both statutory rape and commission of statutory rape while armed are charged, judgment should lie only for the greater offense of armed statutory rape. Robbins, supra. Likewise, where forcible rape and armed forcible rape are...

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10 practice notes
  • James v. State, No. 64S00-9012-DP-01050
    • United States
    • Indiana Supreme Court of Indiana
    • 29 Abril 1993
    ...of appellate procedure and, in so doing, to disregard the sound judicial policy underlying that procedure. Williams v. State (1978), 178 Ind.App. 554, 556, 383 N.E.2d 416, 417. In order to rise to the level of fundamental error, the error must constitute a clearly blatant violation of basic......
  • State v. Perry, No. 808SC1038
    • United States
    • 19 Mayo 1981
    ...v. Michel, 588 F.2d 986, 1001 (5th Cir.) cert. denied 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979); see also Williams v. Indiana, 383 N.E.2d 416 (Ind.App.1978). Accordingly, the possession of stolen property judgment must be vacated, and the case must be remanded for entry of a judgment......
  • Moon v. State, No. 27A02-0408-CR-687.
    • United States
    • Indiana Court of Appeals of Indiana
    • 9 Marzo 2005
    ...age. The law already establishes that a victim younger than sixteen cannot consent to sexual contact. See, e.g., Williams v. State, 178 Ind.App. 554, 383 N.E.2d 416, 418 (1978) (applying former rape statute, Ind.Code § 35-13-4-3). This principle, which is at the heart of the prohibitions ag......
  • McPherson v. State, No. 2-1077A410
    • United States
    • Indiana Court of Appeals of Indiana
    • 20 Diciembre 1978
    ...as set forth did not clearly afford the Defendant the presumption of innocence until proven guilty. The instruction reads as follows: [178 Ind.App. 554] "The court instructs you that under the law if you find the evidence so warrants it under Count I of the information you may find the defe......
  • Request a trial to view additional results
10 cases
  • James v. State, No. 64S00-9012-DP-01050
    • United States
    • Indiana Supreme Court of Indiana
    • 29 Abril 1993
    ...of appellate procedure and, in so doing, to disregard the sound judicial policy underlying that procedure. Williams v. State (1978), 178 Ind.App. 554, 556, 383 N.E.2d 416, 417. In order to rise to the level of fundamental error, the error must constitute a clearly blatant violation of basic......
  • State v. Perry, No. 808SC1038
    • United States
    • 19 Mayo 1981
    ...v. Michel, 588 F.2d 986, 1001 (5th Cir.) cert. denied 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979); see also Williams v. Indiana, 383 N.E.2d 416 (Ind.App.1978). Accordingly, the possession of stolen property judgment must be vacated, and the case must be remanded for entry of a judgment......
  • Moon v. State, No. 27A02-0408-CR-687.
    • United States
    • Indiana Court of Appeals of Indiana
    • 9 Marzo 2005
    ...age. The law already establishes that a victim younger than sixteen cannot consent to sexual contact. See, e.g., Williams v. State, 178 Ind.App. 554, 383 N.E.2d 416, 418 (1978) (applying former rape statute, Ind.Code § 35-13-4-3). This principle, which is at the heart of the prohibitions ag......
  • McPherson v. State, No. 2-1077A410
    • United States
    • Indiana Court of Appeals of Indiana
    • 20 Diciembre 1978
    ...as set forth did not clearly afford the Defendant the presumption of innocence until proven guilty. The instruction reads as follows: [178 Ind.App. 554] "The court instructs you that under the law if you find the evidence so warrants it under Count I of the information you may find the defe......
  • Request a trial to view additional results

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